DEMOCRACY DYING

High Court overturns prisoner vote ban

Prisoners will be able to vote at the upcoming federal election after the High Court overturned the Federal Government's ban today.
Prisoner Vickie Lee Roach successfully challenged amendments passed last year by the Federal Government to prevent prisoners voting.
In a majority decision, the High Court agreed to overturn the ban.
But the court has reaffirmed earlier laws that stipulate that prisoners serving a sentence of three years or more cannot vote.

[The Commonwealth Electoral Act was changed last year to make an amendment to disqualify all prisoners. However Sections 7 and 24 of the Constitution say that the only rational and legitimate basis under which voting rights can be limited is by virtue of a person's mental capacity.
Section 41 of the Constitution, what the lawyers are using as one of the arguments in this case is that no adult person who has or acquires a right to vote shall, while the right continues, be prevented by any law of the Commonwealth from voting at election for either House, etc. In that Section 41 there are also three words: 'while the right continues'.]

The Law Report (June 12, 2007

Anita Barraud: What about the argument that if you're not fit to walk the streets, you're not a proper person to cast a vote.

Phil Lynch, Human Rights Law Resource Centre, Melbourne: That's an argument which is completely contrary to recognised principles of human rights law, and it's also an argument that's completely contrary to recognised principles of commonsense.

Anita Barraud: But this was the rationale for last year's legislation which denies prisoners the vote.

Phil Lynch: That is the rationale, and we say that it's an illegitimate and irrational rationale. The reason we say that, among others, is that at international law it's well recognised that prisoners shouldn't be deprived of any of their rights or freedoms other than those which are a necessary incident of the deprivation of liberty itself. And that basic principle of human rights comes from commonsense. The overwhelming majority of prisoners are not serving life sentences, they will be released into the community and it is absolutely critical, therefore, that if they're going to be released, that our policies and practices in prison, and our policies and practices pertaining to prisoners, promote rehabilitation, reintegration, and a sense of social responsibility.

Professor Kim Rubenstein from the ANU College of Law, is also director of the Centre for International and Public Law says that if the court determines that it's within the Commonwealth's power to limit who the people of the Commonwealth are, and in this circumstance limit it in the way that prisoners are not the people of the Commonwealth for the purposes of voting in our Australian elections, then what does that say about the capacity of the Commonwealth to really limit people's rights in Australia and in fact what we think of as their citizenship rights. So voting is one of the rights that we think of as citizenship; another is the right to live here in Australia and to travel in and out of Australia freely as Australian citizens.